How Spygate Could Slam Journalists

October 02, 2003

By Mike France As criminal investigators probe allegations that Bush Administration officials illegally leaked the name of an undercover CIA agent, several journalists will likely be pressed to divulge the identity of news sources. Former Iraq Ambassador Joseph Wilson IV claims that he knows of at least four reporters who, he says, were contacted by the White House and goaded to write a story identifying his wife, Valerie Plame, as an undercover CIA officer. Wilson has stated he will reveal to the FBI and the U.S. Justice Dept. the names of writers who called him about the tip -- and who allegedly told him that the "leaker" was Bush political adviser Karl Rove.

This scenario raises interesting questions. Can journalists stop him from revealing their identities to law enforcement? The answer is probably not. Writers generally don't ask their sources for confidentiality. As a result, no enforceable oral contract exists between reporter and source that could be used to stop Wilson from identifying them to the FBI.

"It's possible, but extremely unlikely, that a journalist would interview a source and say at the beginning of the conversation, 'Everything I tell you during the course of this interview will be held in confidence by you. Do you agree to the interview?'" says New York City First Amendment law specialist Victor Kovner, of the New York City office of Davis Wright Tremaine. "In my 35 years of advising journalists, I can't think of a single situation where a journalist has asked for confidentiality."

DOUBLE BIND. In contrast, journalists frequently promise confidentiality to their sources. In such cases, sources and journalists have a binding oral contract, according to case precedents. If the reporters divulge the source's identity, legal damages can be imposed by a court.

That could put some journalists in a real bind in this case, however. Under longstanding Supreme Court precedent, reporters have no First Amendment privilege to avoid testifying in court -- unlike, say, attorneys or psychotherapists. However, more than two dozen states, including the District of Columbia, have shield laws that give reporters some protection against revealing their sources. But these rules contain loopholes. For example, grand juries are considered sacrosanct under U.S. law, and a leak from a grand jury isn't protected by shield laws.

In a case involving national security, most judges would be inclined to try to force a journalist to testify, says Kovner. "The more important the case, the more inclined the judge is going to be to force the reporter to talk," he says.

PLENTY OF HEAT. All of which might explain why part of the White House strategy in the Spygate affair has included urging journalists and news organizations to come forward with any information as to who broke the cover of Wilson's wife. President Bush says his Administration is fully cooperating, while also trying to discredit Wilson for making "rash statements."

In this Washington scandal, federal officials won't be the only ones taking the heat. The Fourth Estate will be, too. France is Legal Affairs editor for BusinessWeek